ANATOMY OF THE FEDERAL LITIGATION:
CHALLENGING THE LEGISLATURE'S
ACTIONS IN THE WAKE OF GUINN
V. LEGISLATURE
John C. Eastman*
I.
INTRODUCTION
The call came in about 4:30 on a Friday afternoon in mid-July. The caller,
a member of the Nevada State Assembly, was a bit surprised to have reached
me so late on a Friday afternoon in the middle of the summer. But there was
more than surprise in the voice of Assemblywoman Sharron Angle. Frustration,
even a hint of desperation, colored her tone. For twenty-four hours she had
been contacting every lawyer she knew, and every lawyer they knew, to see if
something could be done about the decision in Guinn v. Legislature of Nevada'
that had been rendered by the Nevada Supreme Court the day before. The
decision effectively voided a key structural provision of the Nevada Constitution that required a two-thirds vote of the Legislature before new or increased
taxes could be imposed.2 I had heard about the case the day before in news
accounts, and had even briefly discussed it in the weekly radio debate I have
with fellow constitutional law professor Erwin Chemerinsky. 3 Nevertheless, I
was a bit perplexed by Sharron's request. I am a member of the national executive committee of the Federalist Society's Federalism & Separation of Powers
practice group 4 and a staunch defender of federalism principles; indeed, the
primary focus of both my scholarly research and public interest litigation has
been to restore some semblance of the limits on the powers of the federal gov* Professor of Law, Chapman University School of Law, and Director, The Claremont
Institute Center for Constitutional Jurisprudence. Dr. Eastman was lead counsel for
plaintiffs in Angle v. Legislature of Nevada, 274 F. Supp. 2d 1152 (D. Nev. 2003), cocounsel on behalf of counter-claimants at the rehearing phase of Guinn v. Legislature of
Nevada, 71 P.3d 22 (Nev. 2003), and counsel of record in Angle v. Guinn, 124 S. Ct. 1662
(Mar. 22, 2004).
' 71 P.3d 1269 (Nev. 2003) (Guinn I).
2 NEV. CONST. art. IV, § 18, cl. 2.
3 Professor Chemerinsky, who teaches at the University of Southern California Law School,
is also the author of one of the leading treatises on federal court jurisdiction. See ERWIN
CHEMERINSKY, FEDERAL JURISDICTION (4th ed. 2003). The weekly debate, addressing the
latest developments in constitutional law, is hosted by Hugh Hewitt and broadcast nationally
on over sixty radio stations via the Salem Radio Network. See http://www.hughhewitt. corn/
pages/stations.htm (last visited June 17, 2004).
4 See http://fed-soc.org/Publications/practicegroupnewsletters/federalism/contacts.htm (last
visited June 17, 2004).
NEVADA LAW JOURNAL
[Vol. 4:543
ernment envisioned by the framers of our Constitution.5 I told Sharron what
she had already been told countless times before: as a general rule, a state
Supreme Court has the last word on matters of state law, including state constitutional interpretation.6
I am not a Calhounian states-rights-at-all-costs devotee, however; for
example, in previous publications, 7 I have argued that the natural rights principles of the Declaration of Independence were actually codified in the Constitution in clauses that applied to the states, including the twin Article IV
provisions guaranteeing a republican form of government 8 and protecting the
privileges and immunities of citizens. 9 These arguments, coupled with the
sense of despair in Sharron's voice, led me to promise that I would read the
opinion to see if there was any possible avenue to pursue, and call her back in
an hour.
What I read was extraordinary. The Nevada Supreme Court's opinion was
no mere interpretative legerdemain. It did not, for example, hold that the 2/3
vote provision was invalidly enacted, that it violated some single-issue requirement of the .State constitution, or that the provision had an implied exception
for emergency funding."0 Any of these grounds, though questionable, would
arguably have qualified as a state court merely interpreting a provision of its
own state constitution, insulated from federal court review.
Instead, the Nevada Supreme Court held: (1) that the two-thirds vote provision was duly enacted and (2) that it was constitutional, but (3) that it was
nevertheless inoperative as a check on the legislature when exercising powers
granted elsewhere (and previously) in the State constitution." In other words,
the court essentially held that the people of the State of Nevada would not be
permitted to amend their State constitution so as to restrict the taxing power of
the legislature.
5 See, e.g., John C. Eastman, Restoring the "General" to the General Welfare Clause, 4
CHAP. L. REv. 63 (2001), available at http://www.chapman.edu/images/userlmages/bai/
Page_4062/Eastman.pdf (last visited June 17, 2004); John C. Eastman, Re-Entering the
Arena: Restoring a JudicialRole for Enforcing Limits on Federal Mandates, 25 HARV. J.L.
& PUB. POL'Y 931 (2002). See also Brief of Amicus Curiae The Claremont Institute Center
for Constitutional Jurisprudence in Support of Petitioner, Solid Waste Agency of N. Cook
County v. U.S. Army Corps of Eng'rs, 531 U.S. 159 (2001) (No. 99-1178), available at
http:l/www.claremont.org/staticlpdflagency-corps.pdf (last visited June 17, 2004); Brief of
Amicus Curiae The Claremont Institute Center for Constitutional Jurisprudence in Support
of Respondents, United States v. Morrison, 529 U.S. 598 (2000) (Nos. 99-5, 99-29); Petition
for Writ of Certiorari, Rancho Viejo, LLC v. Norton, cert. denied, 124 S. Ct. 1506 (Mar. 1,
2004) (No. 03-761), available at http://www.claremont.org/static/ranchoviejo-certpetition.
pdf (last visited Apr. 30, 2004).
6 See, e.g., Farmers Educ. & Coop. Union v. WDAY, Inc., 360 U.S. 525 (1959).
7 John C. Eastman, The Declaration of Independence as Viewed from the States, in THE
DECLARATION OF INDEPENDENCE: ORIGINS AND IMPACT
96, 114 (Scott Douglas Gerber ed.,
2002).
8 U.S. CONST. art. IV, § 4.
9 U.S. CONST. art. IV, § 2.
'O See Miller v. Quertermous, 202 S.W.2d 389 (Ky. 1947). See also Paul E. Salamanca,
The Constitutionalityof an Executive Spending Plan, 92 Ky. L.J. 149, 167 (2003).
'" See Guinn v. Legislature, 71 P.3d 1269 (Nev. July 10, 2003) (Guinn 1), clarified & confinned, 76 P.3d 22 (Nev. Sept. 17, 2003) (Guinn H).
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
545
This was an extraordinary ruling; it undermined one of the very core principles of republican government: government by the people. 12 As such, the
case presented a wonderful opportunity to take Justice O'Connor up on her
suggestion in New York v. United States13 that some Republican Guarantee
Clause claims might well be justiciable despite a century and a half of jurisprudence to the contrary. 1 4 Furthermore, given the connection between the
Republican Guarantee Clause and the natural rights principles of the Declaration of Independence, the principles at stake in Guinn were central to the mission of the Claremont Institute (whose Center for Constitutional Jurisprudence I
direct). That mission is "to restore the principles of the American Founding to
their rightful, preeminent authority in our national life."15 I called Sharron to
tell her I would take the case.
II.
CRAFrING
A LITIGATION STRATEGY
Sharron advised me that the euphoric pro-tax crowd in the State Legislature had already scheduled a rare Sunday session of the Assembly. This house
of the State Legislature had been unable to secure the required two-thirds vote
for tax increase proposals during the first and second special sessions called by
the Governor. Whether intended to hide the tax hike from public view, or
merely to strike while the iron was hot (and before the Nevada Supreme Court
could change its mind), scheduling the Sunday session meant that the Legislature imminently planned to raise taxes without the two-thirds vote specified by
the Nevada Constitution. Any court action to forestall that possibility would
have to come in short order.
My first call was to the apartment of four law student interns working at
the time as Blackstone Fellows at The Claremont Institute. Two had already
flown the coop to visit friends for the weekend. The other two 16 responded
heartily when I asked whether they wanted to act like real lawyers, not fully
appreciating that, under the circumstances, this meant all-night research marathons at the frenetic pace of emergency-relief litigation.
I had a pretty good idea of the federal claims I wanted to raise: a violation
of the Republican Guarantee Clause, vote dilution of both legislators and their
constituents, and, perhaps, vote nullification and various due process claims as
well. I set the Blackstone Fellows to work researching the specific elements of
those claims, and then sent out some e-mails to assemble the rest of the litiga12
Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863), reprinted in FAMous
SPEECHES BY EMINENT AMERICAN STATESMEN 103 (Frederick C. Hicks ed., 1929).
13 505 U.S. 144 (1992).
14 See, e.g., Luther v. Borden, 48 U.S. 1 (1849).
15 The Claremont Institute website is available at http://www.claremont.org/ (last visited
June 17, 2004).
16 Elizabeth Kim (New York University Law School) and Karin Moore (University of St.
Thomas School of Law). By Sunday evening, they would be joined by Leah Boyd (Washington & Lee University School of Law) and Dina Nam (Brooklyn Law School). I wish to
acknowledge my heartfelt thanks to all four students, not just for their terrific work on this
litigation, but for their friendship as well. I also want to express my gratitude to the Alliance
Defense Fund, which sponsors the Blackstone Fellows program, and to the Claremont Institute, which warmly received the Blackstone Fellows.
NEVADA LAW JOURNAL
[Vol. 4:543
tion team. This included students working with the Liberty Clinic (sponsored
by the Center for Constitutional Jurisprudence at Chapman University School
of Law), a fellow former Supreme Court clerk with an active Supreme Court
practice, and a couple of law firms, both regional and national in scope, ready
to backstop the team if the litigation became unmanageable.
In the meantime, we had some questions to answer and some strategic
decisions to make. Should we seek a rehearing before the Nevada Supreme
Court? (Did that court's rules even allow for a rehearing on claims that had not
previously been raised? Just what claims had been raised? Another research
request went out to students; happily, all of the filings in the case were available on the Nevada Supreme Court's web site). Should we instead - or could
we even - file an action in federal court? What were the jurisdictional issues?
Did we need to be concerned with abstention doctrines? Did we need to seek
emergency relief before the Legislature acted, or could we (and should we)
wait until after it acted?
We also had some logistical issues to address. Who were my clients?
About two dozen legislators had filed a separate counterclaim in the Nevada
Supreme Court, but would they all be on board? I needed retention agreements. Could they all be reached over the weekend? What about other clients,
such as citizens, voters, taxpayers, businesses, and various interest groups?
Which of these would be helpful, even necessary, to the federal claims we
wanted to raise? I assigned Sharron the task of securing necessary consent
from her fellow legislators, identifying other potential plaintiffs for the case,
and finding someone who would serve as local counsel.
By late Friday, the "conlawprofs listserve," an e-mail discussion group for
constitutional law professors, was beginning to heat up with commentary on the
Nevada Supreme Court's decision. UCLA Law Professor Eugene Volokh, host
of the list, had posted a brief summary and link to the case. He had posted a
lengthier critique on his widely-read internet web log (or "blog") the evening
before, calling the decision "one of the most appalling" he'd ever seen. He
urged Nevada voters to consider a "We really mean it" constitutional amendment (if one could be adopted in time), and suggested that voters impeach or
recall the Nevada Supreme Court Justices from office, as permitted by the
Nevada Constitution. 7 Prior to accepting representation in the case, I had
weighed in with a listserve posting of my own, asking whether there might be
federal constitutional rights implicated by the decision. That generated a lot of
traffic on the list, addressing the substantive merits of various claims and also
the various jurisdictional problems that might arise.
At some point late Friday evening, someone on our litigation team raised
the specter of the "enrolled bill doctrine."1 8 What if the Legislature were to
pass a tax increase without the necessary two-thirds vote, forward it to the
Governor for signature, and then have it enrolled on the state's statute books
before our litigation could be filed? Would the courts be precluded from looking behind the enrolled bill to the fact that it had not garnered the necessary
17 Professor Volokh's numerous posts on the subject are available at http://volokh.com/
2003_07_06_volokharchive.html (last visited June 17, 2004).
" See explanation of bill enrollment, infra note 22.
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
two-thirds vote? Another research project e-mail, marked "urgent," went out.
Key cases were quickly identified.
After reviewing the cases, I was of the view that the enrolled bill doctrine
should not preclude an after-the-fact challenge to a tax increase passed without
the necessary two-thirds vote, but there was enough room in the joints of the
doctrine to make that a somewhat debatable position, not one on which I
wanted to stake the case. Accordingly, we decided, to be ready with a complaint and request for a temporary restraining order by the next day, Saturday,
July 12, 2003. We also decided to bring the case in federal court, rather than
merely filing a petition for rehearing in the Nevada Supreme Court or filing a
new case in state trial court. Both of the latter options seemed futile in light of
the Nevada Supreme Court's decision, and to pursue them in lieu of a federal
court challenge would all but guarantee that any subsequent federal court challenge would come after a bill had been passed and enrolled.
Thus, around midnight on Friday, we turned our sights to the federal
courts. Quick check of the local District Court rules. Research the judges to
determine whether to file in Las Vegas or in Reno. What about sovereign
immunity issues? Be sure to name individual legislative officers as defendants,
relying on Ex Parte Young, 19 and, of course, include a request for injunctive
relief. Abstention doctrines? Most did not apply, but there was clearly an issue
with the Rooker-Feldman doctrine."0 That is, if we filed a federal court action
on Saturday, even one naming the Legislature and individual members as
defendants (rather than the Nevada Supreme Court or its Justices), would it be
interpreted as a defacto appeal from the Nevada Supreme Court decision? The
doctrine was highly technical and the language in lower court opinions sometimes convoluted. This was going to require clearer heads than we had at 3:00
in the morning. Therefore, one of the Blackstone fellows was tasked with identifying the most thoughtful treatises and law review articles discussing the doctrine, while the rest of us turned in for some head-clearing sleep.
Our co-counsel on the East Coast was up early, and independently realized
that there was a potential Rooker-Feldman issue. He picked up the research
trail from the night before, and started looking at the law review articles and
treatises that the Blackstone fellow had identified. I joined in a few hours later,
and by mid-morning had come to the following conclusion: (1) We absolutely
could not bring suit against the Nevada Supreme Court or its Justices; the
Rooker-Feldman doctrine clearly barred challenges to actions taken in a judicial, rather than an administrative, capacity;2" (2) Even a suit naming the Legislature and/or individual legislators was problematic if filed on Saturday; the
Legislature had not yet taken any action that violated federal rights, so quite
apart from any potential Rooker-Feldman issues, there was also a ripeness concern. We decided to put the complaint on ice until the Legislature took some
action contrary to the two-thirds vote provision of the Nevada Constitution.
That decision bought us a little breathing room to perfect the substance of
the complaint and its developing causes of action, but it also made the litigation
19 209 U.S. 123 (1908).
See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983); Rooker v. Fid. Trust
Co., 263 U.S. 413, 416 (1923).
21 Feldman, 460 U.S. at 468 n.2.
20
NEVADA LAW JOURNAL
[Vol. 4:543
a bit more complicated. Operating on the assumption that some court might
find solace in the enrolled bill doctrine, we still wanted a request for a temporary restraining order (TRO) that, if granted, could prevent a bill from getting
enrolled. Our clients were legislators, familiar with the Nevada legislative process, so I asked our lead client, Sharron Angle, to put together a chronology of
a bill's progress through the legislature, the Governor, and ultimately to the
statute books. We had no idea how quickly the Nevada District Court would
issue the TRO (assuming it decided to issue one at all), or where in the process
the tax bill would be at the time. Thus, we added to the complaint as defendants every legislative leader, employee, and executive branch official who had
any formal substantive or ministerial role in the movement of a bill from introduction to passage to signature to enrolled status.
The Legislature as a whole was named as lead defendant, but each house
of the Legislature was separately named, as were the leaders of the respective
houses: Lorraine T. Hunt, President of the Senate (and also Lieutenant Governor), and Richard D. Perkins, Speaker of the Assembly. These two would ultimately affix their signatures to any bill passed by the Legislature before it got
transmitted to the Governor. Jacqueline Sneddon, Chief Clerk of the Assembly, Diane Keetch, Assistant Chief Clerk of the Assembly, Brenda Erdoes, Legislative Counsel, and Claire J. Clift, Secretary of the Senate, all had an official
hand in the passage of a bill through the Legislature,2" so all were named.
Once a bill is passed by both houses of the Legislature, and the necessary signatures are affixed, it is sent to the Governor for signature (or veto, subject to a
legislative override); thus, Governor Kenny Guinn was named. Once his signature is affixed, a bill gets transmitted to the Secretary of State, who adds it to
the compilation of enacted statutes, so Dean Heller, Secretary of State, was
likewise named. And, of course, collection of any taxes authorized by a tax bill
is the responsibility of the Nevada Department of Taxation. Therefore, Charles
E. Chinnock, the Department's Executive Director, was also named.23
With so many defendants, the magnitude of effecting service of an emergency, ex parte application became evident to me. It also reminded me that we
had not yet secured local counsel. Sharron had identified several possible
22 Nevada Senate Bill 6 (SB 6), the tax bill that was scheduled for consideration by the
Assembly on Sunday, July 13, 2003, had already passed the Senate and been forwarded to
the Assembly. If it passed the Assembly, the Assistant Chief Clerk of the Assembly would
certify on the bill cover that it had been passed by the Assembly, and then transmit the bill
back to the Senate, together with any amendments approved by the Assembly. If the Senate
were to concur in the Assembly's amendments, the Secretary of the Senate would forward
the bill to the legal division for enrollment by the Legislative Counsel. The enrolled bill
would then be printed, placed in a special bill cover designed for the appropriate signatures,
and transmitted to the Senate for signature by the Secretary of the Senate and the Lieutenant
Governor, in her role as President of the Senate. The signed bill would then be transmitted
to the Assembly, where the signatures of the Speaker and the Chief Clerk of the Assembly
would be affixed. The enrolled bill would then be delivered by the Chief Clerk back to the
Legal Division for delivery to the Governor for his consideration. If the Governor were to
sign the bill, it would be delivered to the Secretary of State for archival retention and the
assignment of a chapter number in the compilation of the Statutes of Nevada.
23 For an overview of the Nevada legislative process see The Nevada Legislature Website,
How a Bill is passed, available at http://www.leg.state.nv.us/General/im_ just a bill.cfm
(last visited June 17, 2004).
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
leads, so I began calling to see who was at work on a Saturday afternoon in the
middle of July. One prospect appeared to have a great many connections with
our planned defendants, so I passed on him; he would eventually make an
appearance in the litigation as opposing counsel. Others were unavailable.
Finally I was able to contact a well-recommended solo practitioner in Reno,
Jeffrey Dickerson, who agreed to join the team as local counsel. He was close
enough to the court, and to the legislative and executive offices in Carson City,
to be able to coordinate filing and service.
The bottom side of the complaint caption having taken shape, we still
needed to finalize our list of Plaintiffs. Sharron had been working overtime to
enlist a number of legislators. She had enlisted more than one-third in each
house, which was a potentially critical number to establish standing for the
legislative vote dilution claim. 24 However, because these legislators had all
been parties to the action in the Nevada Supreme Court, this brought us back to
the Rooker-Feldman issue.
By now, we had identified two well-established exceptions to the RookerFeldman jurisdictional bar: (1) it did not apply to claims that were not raised or
decided in the State court;25 and (2) it did not apply to parties who were not
involved with the state court proceeding. 26 Our federal claims did not exist at
the time of the state court proceeding. Indeed, they would not arise until the
Assembly's action late Sunday night deeming as "passed" a tax increase without the requisite two-thirds vote. Thus, in our view, we qualified for the first
exception.
But I wanted to be able to rely on the second Rooker-Feldman exception
as well, and I wanted to raise federal claims beyond the legislative vote dilution
claim. In Michel v. Anderson,2 7 the D.C. Circuit recognized that a legislator's
constituents have a derivative, though distinct, vote dilution claim when their
legislator's vote is abridged. Thus, we identified individual voters and taxpayers who resided in districts represented by any one of our legislator plaintiffs. 28
We also included citizens who had voted for the statewide initiatives in
1994 and 1996, by which the two-thirds vote provision had been added to the
Nevada Constitution. 29 Their votes were essentially nullified when the Nevada
See Raines v. Byrd, 521 U.S. 811, 823 (1997) ("It is obvious, then, that our holding in
Coleman [v. Miller, 307 U.S. 433 (1939)] stands . . .for the proposition that legislators
whose votes would have been sufficient to defeat (or enact) a specific legislative Act have
standing to sue if that legislative action goes into effect (or does not go into effect), on the
ground that their votes have been completely nullified").
25 Rooker, 263 U.S. at 415; Robinson v. Ariyoshi, 753 F.2d 1468, 1469 (9th Cir. 1985),
vacated and remanded on other grounds, 477 U.S. 902 (1986). See also Long v. Shorebank
Dev. Corp., 182 F.3d 548, 558 (7th Cir. 1999) ("an issue cannot be inextricably intertwined
with a state court judgment if the plaintiff did not have a reasonable opportunity to raise the
issue in state court proceedings"); Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d
987, 994-95 (9th Cir. 2002) (Rooker-Feldman doctrine inapplicable when party does not
bring claims in state court).
26 See, e.g., Johnson v. De Grandy, 512 U.S. 997, 1006 (1994); S. Cal. Edison Co. v. Lynch,
307 F.3d 794, 805 (9th Cir. 2002); Bennett v. Yoshina, 140 F.3d 1218, 1224 (9th Cir. 1998).
27 14 F.3d 623, 625-26 (D.C. Cir. 1994).
28 My favorite was a man by the name of Thomas Jefferson!
29 Amendments made to the Nevada Constitution by initiative or referendum need to pass
two consecutive elections. Nev. Const. art. 19 § 4 ("If a majority of such voters votes
24
NEVADA LAW JOURNAL
[Vol. 4:543
Assembly disregarded the two-thirds vote provision. For good measure, we
added "Nevadans for Tax Restraint" and "Nevada Concerned Citizens" 3 ° as
plaintiffs, private associations whose members are Nevada taxpayers and voters
devoted to protecting their rights as taxpayers and voters, respectively. Since
none of these Plaintiffs had been parties to the Nevada Supreme Court proceeding, our federal case now qualified for the second Rooker-Feldman exception.
An additional federal claim that would arise at the end of a bill's process
through the legislature also occurred to me. Nevada Senate Bill 6 (SB 6), a bill
that would impose a gross receipts tax on a host of Nevada businesses, was
scheduled for consideration by the Assembly on Sunday, July 13, 2003. If SB
6 were to pass without the two-thirds vote required by the Nevada Constitution,
the taxes imposed as a result would effectively be a taking of private property
without due process of law. In other words, the bill would have gone through
without the process that was due: the two-thirds vote of the legislature mandated by the Nevada Constitution. Accordingly, we added a due process claim
and a couple of business trade associations as plaintiffs - the Nevada Manufacturers Association and the Retail Association of Nevada, whose members were
targets of the proposed tax.
With both sides of the complaint caption now complete, we turned our
attention back to drafting the complaint, the TRO, and a memorandum of points
and authorities in support of the TRO. By 10:00 p.m. Saturday night, we had
decent drafts of all three filings. More research would be done the next day to
bolster our understanding of the various claims and jurisdictional hurdles, and
to flesh out the irreparable harm portions of the TRO request, but the main task
for Sunday was to wait and watch what the Assembly did.
It then occurred to me that if the federal court denied our request for a
TRO, we would likely end up challenging an enrolled bill after the fact, even if
the federal court granted an expedited hearing on our request for a preliminary
injunction. Considering our options, I realized that we could bring another set
of federal claims to challenge the validity of the Nevada Supreme Court decision itself. After all, the Nevada Supreme Court had granted a remedy that had
never been requested by Governor Guinn, the petitioner in the case. It did so
without an evidentiary hearing or even a briefing of the factual assumption on
which its decision rested. Arguably, these represented some fundamental due
process violations in their own right. Such claims had not been part of the
original state court action, of course, because they did not arise until the
Nevada Supreme Court issued its ruling on July 10, 2003. That would not
necessarily preclude United States Supreme Court review, but the claims
should at least be raised by way of a petition for rehearing if such rehearing
were allowed by the Nevada court rules. Accordingly, I asked my East Coast
co-counsel to start preparing a petition for a writ of certiorari to file in the
United States Supreme Court, along with an application for emergency stay,
approval of such amendment, the secretary of state shall publish and resubmit the question of
approval or disapproval to a vote of the voters at the next succeeding general election in the
same manner as such question was originally submitted.")
30 For information regarding these groups, see http://www.nevadansfortaxrestraint.com/ and
http://www.nevadaconcernedcitizens.org/ (last visited June 17, 2004).
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
while the Blackstone Fellows and I began looking at the Nevada Supreme
Court rules for rehearing petitions.
By late Sunday afternoon, the Assembly was in session. Its proceedings
were broadcast live over the internet, so our litigation team was able to listen in
from various places around the country. SB 6 was called for a roll-call vote; it
received twenty-six votes in favor and sixteen against-two votes short of the
two-thirds vote required by the Nevada Constitution. Nevertheless, Speaker
Perkins gaveled the bill "passed." Lynn Hettrick, the Assembly Minority
Leader, raised a point of order, noting that the bill had failed to garner the twothirds vote required by the Nevada Constitution. The Speaker, in the Chair,
overruled the point of order, asserting that the bill was "passed" by virtue of the
Nevada Supreme Court's decision in Guinn. Assemblyman Hettrick then
appealed the Chair's ruling, asking for a roll-call vote of the full body. After a
brief discussion with legislative counsel, the Speaker refused to honor Hettrick's call for a roll-call note on his point of order. 3' The Assembly's session
was then gaveled to a close.
Although we had earlier obtained contact information from the federal
court for emergency, after-hours filing, the Senate was not scheduled to consider SB 6 until Monday afternoon, so we decided to file our complaint and
application for a TRO as soon as the District Court opened its doors Monday
morning. We used the time to incorporate the proceedings of the Assembly
into the complaint, to polish the allegations and causes of action, and to consider new issues that our ongoing research had uncovered. For example, was
32
our complaint barred, in whole or in part, by the Anti-Tax Injunction Act?
The two Blackstone Fellows who had been working with me since Friday night
were now joined by their colleagues, back from a carefree weekend away from
the law, and they were given this assignment.
III.
THE
FEDERAL COURT CASE
By 3:00 a.m. Monday morning, everything was in order and transmitted to
local counsel, who stood ready to serve the pleadings on each named defendant
and file them with the court once the courthouse opened. The case was initially
assigned to Judge Howard D. McKibbin, who, in turn, referred the request for a
TRO to Chief Judge Philip M. Pro for possible consideration by the full court,
pursuant to the rarely-used procedure authorized by 28 U.S.C. § 46. Chief
Judge Pro conferred with each active judge on the court and then "determined
that the issues raised in Plaintiffs' Emergency Application for Temporary
Restraining Order and Order to Show Cause Re Preliminary Injunction should
be considered in a comprehensive manner by the active District Judges of [the]
33
Court sitting en banc."
31 Rulings on points of order can be appealed to the full House. See ROBERT'S RULES OF
ORDER NEWLY REVISED 247 (10th ed. 2000).
32 28 U.S.C. § 1341 (2000) ("The district courts shall not enjoin, suspend or restrain the
assessment, levy or collection of any tax under State law where a plain, speedy and efficient
remedy may be had in the courts of such State.").
33 Temporary Restraining Order, Angle v. Legislature (July 14, 2003). The documents filed
in Angle v. Nevada Legislature can be found on the Nevada Legislature website at http://
NEVADA LAW JOURNAL
[Vol. 4:543
While the entire District Court was considering the request for a TRO, the
Nevada Senate reconvened its session. The Senate went into Committee of the
Whole to consider the Assembly's amendments to SB 6, the tax bill that had
been "deemed" passed by the Assembly the evening before. Shortly after 4:00
p.m. on Monday, the District Court issued its ruling granting the temporary
restraining order, setting Tuesday at noon as a deadline for responsive briefs by
Defendants, and scheduling oral argument on the matter, to be conducted
simultaneously, via closed circuit television, in the Las Vegas and Reno courtrooms on Wednesday.
Word of the TRO spread like wildfire via the media to the Capital, just as
the Senate had concluded its deliberations and was rising from the Committee
of the Whole to take up a formal vote on SB 6, as amended. Senate Majority
Leader William Raggio asked the Legislative Counsel if she had received any
"formal" notification of a TRO. When she responded in the negative, Senator
Raggio directed the Senators to assemble for a vote on SB 6. Ten minutes
later, the Senators now fully assembled, Senator Raggio again asked whether
the Legislative Counsel had received any "formal" notification of the TRO. At
that moment, our messenger entered the Senate chamber and personally served
on the Legislative Counsel a copy of the TRO, which ordered that "Defendants
are hereby temporarily restrained from giving effect to the action of July 13,
2003, by the Nevada Assembly deeming SB 6 as 'passed,' without the twothirds vote required by Article IV, § 18(2) of the Nevada Constitution ....
Astoundingly, Senator Raggio contemplated whether to ignore the federal
court order and proceed to a vote on SB 6. After lengthy discussion with the
Legislative Counsel and others, he apparently thought better of it, and
adjourned the Senate for the day.
While waiting for the opposition briefs to be served, we began preparing
hearing books for the en banc oral argument on Wednesday. We also prepared
a draft emergency application for a stay pending appeal, to be filed in the
United States. Court of Appeals for the Ninth Circuit, just in case the en banc
Court decided to lift the TRO at the close of the hearing.
The opposition brief from the Attorney General of Nevada (on behalf of
the executive branch officials) was served electronically shortly after noon on
Tuesday. Surprisingly, in this brief, the Governor expressly disclaimed the
remedy that the Nevada Supreme Court had issued in response to his initial
petition.35 By 2:00, we were able to obtain a copy of the opposition brief filed
by the Legislative Counsel from the Legislature's web site (on behalf of the
Legislature and the individual legislators and legislative staff named as defendants).36 After a quick review of the table of authorities, we added cases cited
by defendants to our hearing books, as well as an amicus brief filed by the
www.leg.state.nv.us/TRO/list.cfm (last visited June 17, 2004) and on The Claremont Institute's website at http://www.claremont.org/projects/jurisprudence/0030714nevada.html (last
visited June 18, 2004).
14 Temporary Restraining Order, supra note 32.
" See Governor's Opp'n Br. at 6 (ER at 17) ("The Governor never requested that the twothirds legislative voting requirement of Article 4, Section 18, Clause 2 be declared unconstitutional or that it should be stricken). id. at 2, 8.
36 The Nevada Legislature web page is available at http://www.leg.state.nv.us/TRO/list.cfm.
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
ALF-CIO in support of the defendants. Then, the four Blackstone Fellows and
I headed to the airport for a flight to Reno. On the plane, we parsed defendants' arguments and outlined areas of research for the evening. These included
claims of legislative immunity, both qualified and absolute;3 7 lack of irreparable injury; a challenge to our vote dilution claims; defendants' take on the
Rooker-Feldman doctrine; as well as other arguments. We decided to prepare a
reply brief for filing first thing in the morning, before the hearing. After a brief
dinner with a number of our legislator clients, we holed up in a suite of cubicles
that had been prepared for us, rolled up our sleeves, and set to work. By 5:00
a.m. Wednesday morning, we had a solid reply brief e-mailed off to our local
counsel for filing when the Court opened. We had thoroughly researched every
challenge to our complaint, both jurisdictional and substantive, that had been
raised by defendants. We had final copies of two different versions of an emergency application for preliminary injunction pending appeal, should such be
necessary. We even had time to grab an hour or two of sleep.
The courthouse was a flurry of activity. Picketers and news crews lined
the front steps. Inside, the courtroom was already standing-room only. This
meant that the only seats available for my students were with me at counsel
table - a circumstance that did not trouble them in the least! A large video
conference screen was set up to the right of the bench, depicting the courtroom
in Las Vegas from which the Chief Judge and a majority of the court would be
participating. Co-counsel Jeff Dickerson arrived with extra copies of the reply
brief in hand. At 9:00, the two-city en banc hearing began.
The court was well-versed in the arguments and counter-arguments
addressed in the various filings. Questions from both the bench and the video
screen came in rapid succession, probing both the merits of the substantive
claims and the various jurisdictional and immunity issues that had been raised.
Perhaps most interesting was the direct question to counsel for the Legislature,
asking for the Legislature's view of the Nevada Supreme Court's decision. His
response was that he was not authorized to address the correctness of the
decision.
Before the close of arguments, the court agreed to modify the TRO to bar
the Legislature from giving effect to any tax bill that was deemed "passed"
without the necessary two-thirds vote, not just SB 6. It then took the case
under submission.
On Friday afternoon, just under a week since Sharron Angle had first
called to ask that I review the case, the district court lifted the TRO and dismissed the case, holding that it was without jurisdiction to consider the claims
37 Normally, a state legislator receives immunity from 42 U.S.C. § 1983 and other federal
claims. See, e.g., Tenney v. Brandhove, 341 U.S. 367, 377 (1951). However, legislative
immunity does not apply where the legislator acts outside of his official duties. Bechard v.
Rappold, 287 F.3d 827, 829 (9th Cir. 2002). See also Thompson v. Ramirez, 597 F. Supp.
730, 735 (D.P.R. 1984) (holding that legislators had no immunity where subpoenas issued by
legislators had not been issued pursuant to authorized legislative resolution); Powell v.
McCormack, 395 U.S. 486 (1969); Bond v. Floyd, 385 U.S. 116, 118-124 (1966); Kilbourn
v. Thompson, 103 U.S. 168, 189-90 (1880); Parker v. Merlino, 493 F. Supp. 381 (D.N.J.
1980). Cf Jacobson v. Tahoe Reg'l Planning Agency, 566 F.2d 1353 (9th Cir. 1977), aff'd
in part and rev'd in part on other grounds sub nom. Lake Country Estates, Inc. v. Tahoe
Reg'l Planning Agency, 440 U.S. 391 (1979); Exparte Young, 209 U.S. 123, 167-68 (1908).
NEVADA LAW JOURNAL
[Vol. 4:543
of the legislator plaintiffs because of the Rooker-Feldman doctrine. It also held
that Rooker-Feldman probably posed a jurisdictional bar to its consideration of
the derivative claims of the non-legislator plaintiffs, which were without merit
in any event because defendants were merely acting pursuant to the Nevada
Supreme Court's order.
That afternoon, we filed our emergency application for a stay pending
appeal with the Ninth Circuit, but it was denied that same evening. The Legislature was now free to adopt its tax increases "by simple majority vote," as
decreed by the Nevada Supreme Court, but despite the two-thirds vote provision of the Nevada Constitution.
The Assembly leadership called a session for Saturday evening, at which it
took up Nevada Senate Bill 5 (SB 5), another tax bill that had previously
passed the Senate. As with SB 6 a week earlier, the Assembly failed to garner
a two-thirds vote in support of the bill, but the Speaker nevertheless gaveled it
"passed" over the point of order objection of Assemblyman Hettrick. The bill
was then transmitted to the Senate. Then, a curious thing happened - the Senate refused to accept it. Senate leadership instead ordered that it be returned to
the Assembly, apparently because the bill had failed to muster the necessary
two-thirds vote. In other words, the Senate itself was now in contempt of the
Nevada Supreme Court's order, refusing to consider a bill that had been passed
"by simple majority vote," but in its contempt, the Senate honored the higher
command of the Nevada Constitution.
IV.
BACK TO STATE COURT
The following Monday, July 21, 2003, the Legislator Plaintiffs who had
commenced the federal suit filed an emergency motion for a stay and a petition
for rehearing with the Nevada Supreme Court. The motions specifically raised
the claimed violations of federal constitutional rights that the court's decision
had authorized. The emergency motion for a stay was held in abeyance until
responsive briefs could be filed by the end of the week. In order to press their
own federal claims, the non-legislator plaintiffs from the federal action filed a
motion to intervene in the Nevada Supreme Court proceeding that same afternoon; their motion was denied by the court about an hour later. Later that
evening, after two days of intense lobbying, one of the legislators who had
opposed the tax bills switched his vote in order to avoid a "constitutional crisis." 3 8 This gave the necessary two-thirds vote to the largest tax increase ever
adopted in the state of Nevada. Governor Guinn signed the bill into law the
next day.
On Tuesday, the Legislators who had filed the petition for rehearing
advised the Nevada Supreme Court of the new development and filed a motion
to vacate the July 10, 2003 decision. A memorandum of points and authorities,
in support of vacatur, followed two days later.
Two months later, on September 17, 2003 - Constitution Day - the
Nevada Supreme Court denied the petition for rehearing, thereby reaffirming
38
Statement on the floor of the Assembly, available at http://eg.state.nv.us/20thSpecialV
Journal/Assembly/Final/aj027.html (last visited June 17, 2004).
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
its earlier ruling. 39 A petition for a writ of certiorari was denied by the
Supreme Court of the United States in March 2004.40 Oral argument in the
federal action was heard at Stanford University before the United States Court
of Appeals for the Ninth Circuit on April 15, 2004 - ironically, tax day. On
May 12, the Ninth Circuit rendered its opinion holding that Assemblyman Marvel's switched vote in favor of SB 8 had rendered the case moot. 41 At the time
of this writing, a petition for rehearing remains pending before the Ninth Circuit Court of Appeals. To date, no court has considered the merits of the significant federal claims raised by the Legislative Plaintiffs in the federal court
action, which are summarized in the next section (and drawn from the appellate
brief filed in the Ninth Circuit).
V.
A.
THE SUBSTAN'rVE FEDERAL CLAIMS
The Legislator Plaintiffs' Vote Dilution Claim
In Coleman v. Miller,42 the Supreme Court of the United States expressly
recognized that a state legislator has a federal cause of action to challenge
actions by the state legislature that dilute or render nugatory the legislator's
vote. In doing so, the Court held that state legislators "have a plain, direct and
adequate interest in maintaining the effectiveness of their votes.",43 At issue in
the case was whether, in voting to ratify a federal constitutional amendment,
the lieutenant governor of the state was permitted to cast a vote in the event of a
tie. As the Court noted, "the twenty senators [who were petitioners in the case]
were not only qualified to vote on the question of ratification but their votes, if
the Lieutenant Governor were excluded as not being a part of the legislature for
that purpose, would have been decisive in defeating the ratifying resolution."' 4
Although Coleman involved a federal constitutional amendment, several
courts have recognized that a State legislature's failure to comply with its own
procedures may violate federal Due Process. 4 5 As the Fourth Circuit noted in
Richardson v. Town of Eastover, "Fairness (or due process) in legislation is
satisfied when legislation is enacted in accordance with the procedures established in the state constitution and statutes for the enactment of legislation,"4 6
not by legislation enacted in violation of the procedures mandated by the state
constitution. "Legislative rules are judicially cognizable, and may therefore be
enforced by the courts."4 7 Moreover, the Supreme Court in Bender v. Wil39
4o
41
42
Guinn v. Legislature of Nevada, 76 P.3d 22 (Nev. Sep. 17, 2003).
Angle v. Guinn, 124 S. Ct. 1662 (Mar, 22, 2004).
Amodei v. Nev. State Senate, 2004 WL 1109482 (9th Cir. May 12, 2004).
307 U.S. 433 (1939).
43 Id. at 438.
44 Id. at 441. Cf Skaggs v. Carle, 110 F.3d 831, 833 (D.C. Cir. 1997) (noting that "[T]he
harm worked by [a rule changing the amount of votes necessary to pass legislation] - diluting the Representatives' votes and diminishing their ability to advocate a position - is apparent, as is the command of the Constitution that we remedy that harm").
41 See, e.g., Rea v. Matteucci, 121 F.3d 483, 485 (9th Cir. 1997) (quoting Atkins v. Parker,
472 U.S. 115, 130 (1985)); Conway v. Searies, 954 F. Supp. 756, 767 (D. Vt. 1997).
46 922 F.2d 1152, 1158 (4th Cir. 1991).
41 Conway, 954 F. Supp. at 769 (citing Yellin v. United States, 374 U.S. 109, 114 (1963));
Christoffel v. United States, 338 U.S. 84 (1949).
NEVADA LAW JOURNAL
[Vol. 4:543
liamsportArea School District expressly suggested, albeit in dicta, that members of state legislative bodies have standing to bring a federal vote dilution
claim that arises from violations of state law. 48 A legislator in such circumstances "would have to allege that his vote was diluted or rendered nugatory
under state law," and "he would4 9have a mandamus or like remedy against the
Secretary of the School Board."
The hypothetical case described in Bender is identical to the Nevada case
under consideration here. State law, in Article 4, § 18(2) of the Nevada Constitution, authorizes legislative action on tax increases "solely" by two-thirds vote.
The disenfranchised legislators - the Legislator Plaintiffs who together provided enough votes to defeat the tax increase pursuant to the two-thirds vote
requirement of Article 4 - claimed that they were legally entitled to protect the
effectiveness of their vote. In their complaint, they alleged that their vote was
diluted or rendered nugatory under state law. Accordingly, they sought to
enjoin the clerk of the Assembly and the Secretary of the Senate, among others,
from certifying as "passed" a bill that did not receive the necessary two-thirds
vote. Under the provisions of the Nevada Constitution, the vote of a member of
the State Assembly is one-fifteenth of the votes necessary to defeat a tax
increase. ° Under the procedure employed by the Assembly during the votes
on SB 5 and SB 6, an Assemblyman's vote was only 1/21 of the votes necessary to defeat a tax increase. This was a classic case of vote dilution in violation of the Due Process clause.
B.
Voter Plaintiffs' Derivative Vote Dilution Claim
The Supreme Court has also repeatedly recognized vote dilution claims by
voters. 5' That the dilution occurs after the voters' representative is elected, and
is therefore derivative of the legislator's own vote dilution claim, is immaterial. 52 As the D.C. Circuit noted in Michel: "It could not be argued seriously
that voters would not have an injury if their congressman was not permitted to
vote at all on the House floor."'53 Depriving voters of the full weight of their
representatives' votes, guaranteed by the Nevada Constitution's two-thirds
requirement, is only a difference in degree from the hypothetical embraced in
Michel as a self-evident constitutional violation.
By operation of Article 4, Section 18(2) of the Nevada Constitution,
Nevada voters are entitled to representation with a vote sufficient to block a tax
increase unless supported by two-thirds of the legislature. The Assembly's failure to abide by that constitutional provision, and to deem as "passed" a tax
48 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 n.7 (1986) ("if... state law
authorized School Board action solely by unanimous consent," a disenfranchised school
board member "might claim that he was legally entitled to protect 'the effectiveness of [his]
vot[e].'") (quoting Coleman, 307 U.S. at 438) (brackets in original).
49 Id.
50 2/3 of 42 members of the Assembly equals 28 votes needed to pass tax legislation; thus
15 votes are needed to defeat tax legislation.
51 See Wesberry v. Sanders, 376 U.S. 1 (1964); Franklin v. Massachusetts, 505 U.S. 788
(1992).
52
Michel v. Anderson, 14 F.3d 623, 626 (D.C. Cir. 1994); see also Skaggs v. Carle, 110
F.3d 831, 834 (D.C. Cir. 1997).
13
Michel, 14 F.3d at 626.
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
increase that failed to garner the necessary two-thirds vote, diluted the representation to which such voters were entitled, and therefore deprived citizens of
their right to vote. "The right of suffrage is 'a fundamental political right,
because preservative of all rights."' 54 Infringement on the right to vote, including infringement by dilution, violates the First and Fourteenth Amendments of
the United States Constitution.55 "'[T]he right of suffrage can be denied by a
debasement or dilution of the weight of a citizen's vote just as effectively as by
wholly prohibiting the free exercise of the franchise.' . . . If, however, 'the
election process itself reaches the point of patent and fundamental unfairness, a
violation of the due 56
process clause may be indicated and relief under § 1983
therefore in order."'
C.
The Voter Plaintiffs' Effective Vote Claim
The Voter Plaintiffs also alleged a federal constitutional claim centered on
the effectiveness of the votes they cast in support of the Gibbons Constitutional
Tax Initiative in 1996, 5 and by which they achieved an amendment to the State
Constitution that was ignored by the Assembly's actions. As the Supreme
Court held in Gray v. Sanders,5 8 the right to vote constitutes more than just the
right to show up at a voting booth and cast a meaningless vote. It encompasses
the right to have that vote counted and, if successful, to have the results of the
59
vote given effect.
In deeming as "passed" a tax increase bill without the two-thirds vote
required by the Nevada Constitution, the State Assembly essentially treated the
successful vote for the Gibbons Constitutional Tax Initiative as without any
effect, at least whenever there is a budget stand-off involving spending for education. By so doing, the Voter Plaintiffs were deprived of their right to an
effective vote protected by the Fourteenth Amendment of the Unites States
Constitution. In addition, the action by the State Assembly essentially gave
greater - indeed dispositive - weight to the votes of those who opposed the
Gibbons Constitutional Tax Initiative, in violation of the Equal Protection
Clause of the Fourteenth Amendment. 60 As the Supreme Court noted in Bush
v. Gore, "'the right of suffrage can be denied by a debasement or dilution of
the weight of a citizen's vote just as effectively as by wholly prohibiting the
6
free exercise of the franchise.' , '
54 Roe v. Alabama, 43 F.3d 574, 580 (11 th Cir. 1995) (quoting Yick Wo v. Hopkins, 118
U.S. 356, 370 (1886)).
55 Id.
Id. (quoting Reynolds v. Sims, 377 U.S. 533, 554 (1964), and Duncan v. Poythress, 657
F.2d 691, 703 (5th Cir. Unit B 1981), cert. denied, 459 U.S. 1012 (1982)).
57 Codified at NEV. CONST., art. 4, § 18(2).
56
58 372 U.S. 368, 380 (1963).
59 Id.; see also United States v. Mosley, 238 U.S. 383, 386 (1915).
60 See Bush v. Gore, 531 U.S. 98, 104-05 (2000) ("Having once granted the right to vote on
equal terms, the State may not, by later arbitrary and disparate treatment, value one person's
vote over that of another.") (citing Harper v. Va. Bd. of Elections, 383 U.S. 663, 665
(1966)).
61 Id. at 105 (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). See also id. at 107
("'[T]he idea that one group can be granted greater voting strength than another is hostile to
the one man, one vote basis of our representative government' ") (quoting Moore v. Ogilvie,
NEVADA LAW JOURNAL
[Vol. 4:543
D. Plaintiffs' Republican Guarantee Claim
Article IV, Section 4 of the United States Constitution provides that "The
United States shall guarantee to every State in the Union a Republican Form of
Government." Although claims premised on the Republican Guarantee Clause
have long been viewed as nonjusticiable political questions in most circumstances," in New York v. United States, Justice O'Connor noted "that perhaps
not all claims under the Guarantee Clause present nonjusticiable political questions. '' 6 3 "Contemporary commentators," she noted, "have likewise suggested
that courts should address the merits of such claims, at least in some circumstances." 64 Several courts have acknowledged that the Republican Guarantee
Clause might present justiciable questions in the wake of New York v. United
States, but thus far all have found that the Clause had not been violated in the
particular circumstances at issue in those cases.65
The Guinn case should qualify as one of the rare instances in which a
Republican Guarantee claim is viable. The essence of the claim, drawn from
New York v. United States, is whether a state's citizens may "structure their
government as they see fit."' 6 6 In New York v. United States, the Court dismissed the Guarantee Clause claim because the statute in that case did not
"pose any realistic risk of altering the form or the method of functioning of
New York's government. ' 67 By imposing, through a constitutional amendment, a two-thirds vote requirement for tax increases, the citizens of Nevada
adopted a new structure for their government with a new method of functioning
that made it more difficult to increase taxes. Actions that have a "realistic risk
of altering the state's form of government," from what the citizens of the state
have themselves adopted, have been held to be amenable to Republican Guarantee Clause claims. 68 Essentially, the federal courts are supposed to protect
394 U.S. 814, 819 (1969)). The fact that the Nevada Supreme Court ratified this debasement
of the initiative voters is of no moment. See Bush, 531 U.S. at 107 (finding an equal protection violation by disparate recount procedures that were "ratified" by the Florida Supreme
Court).
62 See Luther v. Borden, 48 U.S. 1, 46-47 (1849).
63 505 U.S. 144, 185 (1992).
64 Id. at 185 (citing LAURENCE H.
1988);
TRIBE, AMERICAN CONSTITUTIONAL LAW
JOHN HART ELY, DEMOCRACY AND DISTRUST:
122-123 (1980);
A
398 (2d ed.
THEORY OF JUDICIAL REVIEW 118,
WILLIAM M. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION
287-89, 300 (1972); Deborah J. Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REv. 1, 70-78 (1988); Arthur E. Bonfield, The
GuaranteeClause ofArticle IV, Section 4: A Study in ConstitutionalDesuetude, 46 MINN. L.
REV.
513, 560-65 (1962)).
65 See Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997); Adams v. Clinton, 90 F.
Supp. 2d 35 (D.D.C. 2000); New Jersey v. United States, 91 F.3d 463, 468-69 (3rd Cir.
1996); Padavan v. United States, 82 F.3d 23, 27-28 (2nd Cir. 1996); Deer Park Indep. Sch.
Dist. v. Harris County Appraisal Dist., 132 F.3d 1095, 1099-1100 (5th Cir. 1998); City of
New York v. United States, 179 F.3d 29 (2nd Cir. 1999); Kelley v. United States, 69 F.3d
1503, 1511 (10th Cir. 1995). But see State ex rel. Huddleston v. Sawyer, 932 P.2d 1145 (Or.
1997) (holding that Republican Guarantee claim is nonjusticiable).
66 Kelley, 69 F.3d at 1511.
67 New York, 505 U.S. at 186.
68 Texas, 106 F.3d at 667; New Jersey, 91 F.3d at 468-69.
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
preferences of a state's citizens, serving as a sort of "structural
the structural
69
referee."
The Assembly's decision to ignore the governing structure imposed upon
it by the State's citizens, via a constitutional amendment, is just the kind of
violation of the Article IV guarantee of a Republican form of government that
the federal courts have begun to entertain.
E.
The Taxpayer Plaintiffs' Due Process Claims
Finally, had the tax bills unconstitutionally deemed by the Assembly as
"passed" become law, the Taxpayer Plaintiffs would have their property taken
without due process of law in the most basic meaning of that provision of the
Fourteenth Amendment. Due process means, inter alia, some regular, settled,
predictable rule of law. 70 "The words, 'due process of law,' were undoubtedly
intended to convey the same meaning as the words 'by the law of the land' in
Magna Charta.''7 1 "To be deprived of liberty or property without due process
of law means to be deprived of liberty or property without authority of the
law."'72 "[T]he government operates with greater fairness, and thus greater
' 73
legitimacy, when it does not change the rules midway through the game,
particularly when those rules are mandated in the State's own Constitution.
Thus, the constitutional argument was simple and clear. Since 1996, the
Nevada Constitution - the relevant "law of the land" for our purposes -specified the process by which new taxes can be raised: a two-thirds vote of each
house of the Legislature was required.7 ' Any tax increase that was adopted in
derogation of that constitutionally-mandated process would amount to the taking of the property of Nevada citizens and businesses without the process that
was due. Such a law would be enacted contrary to the clearly settled requirements of the Nevada Constitution and in violation of the Due Process Clause of
the Fourteenth Amendment.
VI.
A
COMMENT ON THE NEVADA SUPREME COURT's GUINN
Decision
All of these federal claims turn on a certain assumption, of course:
namely, that the state legislature was bound by the 2/3 vote provision of the
Nevada Constitution despite the Nevada Supreme Court's order directing that it
be ignored. Opponents of the federal claims contended that, when considered
in light of the Guinn decision, there was no vote dilution, no vote nullification,
no threatened due process violations, and most of all no undermining of a
republican form of government because the people's constitution, as re-interpreted by the Nevada Supreme Court, had been followed. That the courts have
Brzonkala v. Va. Polytechnic Inst. & State Univ., 169 F.3d 820, 895 (4th Cir. 1999), aff'd
sub nom. United States v. Morrison, 529 U.S. 598 (2000).
70 Kent v. United States, 383 U.S. 541, 553 (1966); Carter v. Illinois, 329 U.S. 173, 175
69
(1946); L C & S, Inc. v. Warren County Area Plan Comm'n, 244 F.3d 601, 602 (7th Cir.
2001).
71 Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272, 276 (1856).
72 Rosaly v. Ignacio, 593 F.2d 145, 150 (7th Cir. 1979).
71 Chambers v. Reno, 307 F.3d 284, 296 (4th Cir. 2002).
74 NEV. CONST. art. IV, § 18, cl. 2.
NEVADA LAW JOURNAL
[Vol. 4:543
the key (perhaps the final or even the only) role in interpreting the law is a
well-established proposition as old as Marbury v. Madison itself, according to
the opposition.
Given the centrality of this challenge to the viability of the federal claims,
it is important to add a brief comment about the Guinn decision itself - about
what precisely it did and, as importantly, what it did not do.
The Nevada Supreme Court did not hold that the 2/3 vote provision violated some provision of the federal constitution - a position later advanced by
the Nevada State Education Association in its amicus curiae brief before the
Ninth Circuit. Although any such holding would have been hard to reconcile
with existing precedent, it would arguably have been within the judicial power
to issue such a holding.
Nor did the Nevada Supreme Court simply interpret an ambiguous provision of the Nevada Constitution. However misguided such an interpretation
might have been, it, too, arguably would have been within the province of the
judiciary. But the decision in Guinn was no mere state court interpretation of
ambiguous state law, which, as a general rule, is beyond the purview of the
federal courts. 75 Rather, the Nevada Supreme Court candidly admitted that the
2/3 vote provision was unambiguous, that it was validly enacted, and that it did
not violate any command of the federal Constitution7 6 ; yet it nevertheless
ordered the Legislature to ignore the binding state constitutional amendment.
State courts simply do not have a free hand to interpret state law beyond
what a "fair reading" would permit, without violating due process.77 The
Nevada Supreme Court's decision went beyond what a "fair reading" of
existing state law would permit in a number of ways.
A. The Remedy Afforded by the Nevada Supreme Court Had Not Been
Requested, or Even Suggested, by Any Party
One of the most curious aspects of the Nevada Supreme Court's decision
was that no party ever asked the court to invalidate article 4, Section 18(2) of
the State constitution or even to suspend its operation for the special legislative
session then under way.78 Justice Maupin, in dissent, expressly noted without
contradiction that "none of the parties directly named in this litigation, including the Governor, have requested the specific relief we provide today."79 The
Governor, too, admitted during the parallel proceedings in the federal district
court that he "never requested that the two-thirds legislative voting requirement
75 See, e.g., Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70, 76 (2000).
See, e.g., Guinn, 71 F.3d at 1273.
77 Bouie v. City of Columbia, South Carolina, 378 U.S. 347, 361-62 (1964); Bush v. Gore,
531 U.S. 98, 115 (2000).
76
Although an amicus brief of the NSEA questioned whether this state constitutional provision violated the federal Constitution, the court did not decide the case based on the federal
constitutional issues presented by those amici. To do so, moreover, would have been procedurally improper for a number of reasons. Even assuming the NSEA had been granted leave
to file its brief, amici cannot raise new issues on their own. The parties were not called on to
brief the amici's points. Although the court ordered the Governor and other counter-respondents to respond to the counter-petition filed the same day as the amicus brief, no response
was ordered to any issues raised by the amici.
79 Guinn, 71 F.3d at 1276 (Maupin, J., dissenting).
78
Spring 2004]
ANATOMY OF THE FEDERAL LITIGATION
of Article 4, Section 18, Clause 2 be declared unconstitutional or that it should
be stricken." 8 The remedy was raised for the first time by the Nevada Court's
decision, without
argument or hearing, contrary to the most basic precepts of
81
due process.
B.
"Unconstitutional" ConstitutionalAmendments
The Nevada court also gave life to the old law-school hypothetical notion
of "unconstitutional constitutional amendments." The notion posits that there
are some provisions of a constitution so fundamental, so central to basic principles of political theory, that they simply cannot be amended.8 2 Even if it would
ever be appropriate for a court to invalidate a constitutional amendment on
such grounds, this was not the case. Unlike the examples typically used in the
hypothetical context - separation of powers restrictions, for example, or
supermajority requirements for the adoption of amendments - the Nevada
Supreme Court rejected, rather than protected, a structural provision in favor of
a non-structural one.
C.
Canons of Construction
The Nevada Supreme Court also ignored or misapplied a number of its
own longstanding interpretative canons in the course of rendering its extraordinary and unexpected decision, including:
* More recently enacted constitutional provisions prevail over older provisions;
* Specific provisions will prevail over generalized provisions on the same subject
matter;
* A court is, to the maximum extent possible, supposed to reconcile apparently
conflicting provisions;
* A court must give effect to unambiguous provisions;
* A court sitting in equity will not render equity to a party coming with "unclean
hands."
The Nevada Court's utter refusal to follow or consistently apply any one
of those traditional canons of interpretation would raise serious due process
concerns, but its failure faithfully to apply any of them pushes the due process
concerns well beyond the breaking point.
1.
Last in Time Prevails
Nevada has long subscribed to the interpretative canon that "if there is an
irreconcilable conflict between two statutes, the statute which was most
recently enacted controls the provisions of the earlier enactment." 83 Nevada
80 Angle, Governor's Opp'n Br., at 6.
81 See Bowman Transp., Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281 (1974) (holding
that parties need "to know the issues on which decision will turn and to be apprised of the
factual material" so that they may rebut claims against them) (citing Ohio Bell Tel. Co. v.
Public Utils. Comm'n, 301 U.S. 292 (1937); United States v. Abilene, 265 U.S. 274 (1924)).
82 See, e.g., Walter F. Murphy, THE NATURE OF THE AMERICAN CONSTITUTION (1989);
Mark A. Graber, Old Wine in New Bottles: The Constitutional Status of Unconstitutional
Speech, 48 VAND. L. REV. 349, 380 (1995).
83 Marschall v. City of Carson, 464 P.2d 494, 500 (Nev. 1970) (citing, e.g., State ex rel.
Eggers v. Esser, 129 P. 557 (Nev. 1913)).
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applies the same rules of construction when construing constitutional provisions that it applies when construing statutes. 84 Indeed, in the context of constitutional provisions, the "last in time" principle is more than just an
interpretive canon; it is compelled by the very nature of constitutional government and the recognition in the Declaration of Independence that governments
are established by the consent of the governed.8 5 As a result, the Nevada
Supreme Court has given the principle particularly strong application in the
context of constitutional provisions:
[Ilt is an oxymoron to state that a duly-ratified constitutional amendment can, at the
time of its passage, violate that same constitution. It is one of the best-established
principles of constitutional interpretation that in the case of a clear conflict between a
constitutional amendment and another constitutional provision already existing at the
time the amendment is ratified, the amendment, being the later expression of will of
the lawmaker, must prevail. 86
That "oxymoronic" proposition is precisely the holding of the Nevada
Supreme Court in Guinn. Although the Court did not go so far as to actually
declare the 2/3 vote provision unconstitutional, as some of the amici had
urged,87 it did deprive the provision of any effect, which is even worse, for it
effectively negated a duly-enacted act of the people without even the pretense
of a holding of unconstitutionality: "Our opinion did not eliminate the twothirds requirement, but it did indicate that the supermajority provision could not
be used to avoid other constitutional duties." 88
2.
Specific Provisions Prevail over General
The Nevada Supreme Court sought to avoid the clear import of the last-intime rule by manufacturing a new rule of interpretation that "substantive" provisions trump "procedural" provisions of the Constitution. Although it
attempted to portray that new rule as merely an application of the longstanding
rule that general provisions must yield to specific provisions,89 the court's new
dichotomy was actually a bastardization of the older rule, treating a core structural provision of the State's Constitution as a mere "procedural" rule and treating as "specific" the very general provision that "the legislature shall provide
for [the] support and maintenance [of at least one common school in each district] by direct legislative appropriation from the general fund, upon the presentation of budgets in the manner required by law."90 Indeed, had the Nevada
Supreme Court looked to the "specific" requirements of the education provisions, it would have been immediately apparent that the only obligation is to
fund a limited number of schools for half a year; a requirement that could easily
have been met with the approximately $700 million already available in the
84 Nevada Mining Ass'n v. Erdoes, 26 P.3d 753, 757 (2001).
85 THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776); see also Nevada Enabling Act,
13 Stat. 30 (1864) (requiring conformity with the principles of the Declaration).
86 Whitehead v. Nevada Comm'n on Judicial Discipline, 878 P.2d 913, 938 (Nev. 1994)
(citing Schick v. United States, 195 U.S. 65, 68-69 (1904)).
17 See Guinn IH,
76 F.3d at 30.
88 Id. at 32.
89 Guinn 1, 71 F.3d at 1275 & n.17 (citing SIIS v. Surman, 741 P.2d 1357, 1359 (Nev.
1987)).
90 Id.; NEv.
CoNsT. art. 11, §§ 2, 6.
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budget without need for further appropriations and without conflict with the
exceptionally specific requirement that new taxes be approved by a 2/3 vote.
Under the court's new reasoning, other "procedural" provisions of the
Nevada Constitution are just as susceptible to judicial nullification as was the 2/
3 vote provision, including the requirement of bicameralism, presentment, the
120-day restriction on legislative sessions, and even the limitation on matters
that can be considered in special session.9" The Nevada Supreme Court
acknowledged that these provisions, too, contributed to the supposed conflict
between the 2/3 tax provision, on the one hand, and the education funding and
balanced budget provisions, on the other.9 2 These provisions are every bit as
"procedural" and "general," in the Nevada Supreme Court's newly manufactured hierarchy of constitutional commands, as was the 2/3 vote provision. The
Nevada Senate had already voted to approve the tax increase by the requisite 2/
3 vote, so the bill could have been deemed as "passed" by the Nevada court
without any Assembly input to avoid the "conflict" between the "general" and
"procedural" bicameralism provision and the "specific" and "substantive" education funding provision. Indeed, the court could just as easily have ordered
the Legislature to ignore the requirement of article 4, Section 19 of the Nevada
Constitution, which bars the State Treasurer from releasing funds without a
legislative appropriation.
Such absurdities are no different than the court's nullifying the 2/3
requirement for new taxes, which represents, more than anything else, an abandonment of constitutional government and a court run amok.
3.
Reconcile Conflicting Provisions
Another long-standing interpretive canon followed in Nevada is that,
whenever possible, courts are to interpret rules or statutes in harmony with
other rules and statutes.93 Indeed, the Nevada Court has frequently noted that it
is "obligated" to reconcile conflicting provisions to the maximum extent possible.94 Yet in Guinn, the Nevada Supreme Court disregarded several obvious
means of reconciling the supposed conflict between the 2/3 vote provision, on
the one hand, and the balanced budget and education funding provisions, on the
other. It refused a request to remit the matter back the Governor, who possessed the power to expand his special session proclamation to permit the Legislature to consider spending reductions elsewhere in the budget, which very
likely would have solved the impasse. It broadly read the education provisions
to mandate a level of funding that necessitated a tax increase beyond the level
for which there was the support of 2/3 of the Legislature, when nothing in those
clauses remotely suggests any specific level of funding. Indeed, the only
requirement is found in Article 11, § 2, which mandates only that the Legislature provide funding for one school in each district for a minimum of six
§§ 2, 18(1), 35; art. 5, § 9.
See, e.g., Guinn H, 76 F.3d at 27 (noting that other problems contributing to the conflict
included the "abbreviated nature of the legislative session" and "policy disagreements
between the Senate and Assembly").
91 See NEV. CONST. art. 4,
92
" Guinn 1, 71 P.3d at 1275 n.16 (citing Bowyer v. Taak, 817 P.2d 1176, 1177 (1991), and
People v. Anderson, 493 P.2d 880, 886 (Cal. 1972)).
94 Id.; Weston v. Lincoln County, 643 P.2d 1227, 1229 (Nev. 1982).
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months each year - a mandate that was easily met without violating the 2/3
vote provision. Neither of these obvious ways of reconciling the supposed conflict was considered by the court,95 which instead simply rendered nugatory the
later-enacted 2/3 vote provision.
4.
Unambiguous Provisions
Finally, the Nevada Court gave only lip service to a key restriction on the
judicial role that it has in the past repeatedly applied:
Where the language of a statute is plain and unambiguous, and its meaning clear and
unmistakable, there is no room for construction, 96and the courts are not permitted to
search for its meaning beyond the statute itself.
Despite its own repeated treatment of the 2/3 vote provision as "clear on
its face," the Nevada Supreme Court looked beyond the clear text to other
materials to try and ascertain a different voter intent, concluding, essentially,
that the voters were too ignorant to have understood what effect the initiative
would actually have on the functioning of state government. 97
5.
"Unclean Hands"
The Nevada Supreme Court has long subscribed to "the well-established
defense to equitable claims that litigants seeking equity must come with 'clean
hands."' 98 The legislative standstill that led Governor Guinn to invoke the
equity jurisdiction of the Nevada Supreme Court was (at least in part) of his
own making, the result of his refusal to expand his special session proclamation
to permit the Legislature to consider reductions in previously-approved appropriations. The counter-petition filed by several legislators, asking the Nevada
Supreme Court not to consider the Governor's petition because of the Governor's unclean hands, was denied; the court inexplicably asserted that it had "no
authority, under the separation of powers doctrine, to compel either the Governor or the Legislature to employ such methods to resolve any impasse."9 9 Such
faux concern for separation of powers was particularly bitterly ironic given the
court's ensuing disregard for Nevada's Constitution.
In light of all these departures from customary canons of judicial interpretation, the Nevada Supreme Court's decision was well beyond anything that a
"fair reading" of existing law would have permitted. To discount the federal
claims against the Legislature for violations of the Nevada Constitution by permitting the Legislature to seek cover behind such an unprincipled decision is
not only circular, but would go far to end any notion of constitutional government. Unambiguous, validly-enacted, and perfectly constitutional amendments
to a state constitution simply must be given effect. The people's exercise of
their ultimate authority via the amendment process, not the state court's con" A third alternative, resort to article 4, Section 18(3), which specifically provides that tax
increases failing to garner a 2/3 vote could nevertheless take effect if approved by a simple
majority of the voters, was completely discounted by the court as "inadequate." Guinn 1, 71
P.3d at 1274 n.12.
96 Div. of Ins. v. State Farm Mut. Auto. Ins. Co., 995 P.2d 482, 485 (Nev. 2000).
97 Guinn H, 76 P.3d at 26.
98 Tracy v. Capozzi, 642 P.2d 591, 593 (Nev. 1982).
99 Guinn 1, 71 P.3d at 1274 n.9.
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trary view, set the baseline against which both the procedures and substance of
the Legislature's action must be measured.
VII.
CONCLUSION
Well-established federal claims of vote dilution, and violations of the due
process and/or equal protection clauses, were implicated by Nevada Assembly
actions, which deemed as "passed" tax increases without the two-thirds vote
mandated by the Nevada Constitution. Less-established - indeed, long dormant - are claims that the Nevada Assembly's actions, and those of the Nevada
Supreme Court upon which it relied, violated the Article IV guarantee of a
republican form of government. In many ways, this claim is the most interesting; it directly challenges the circular defense that no claim had been stated
because all actions had been authorized by the Nevada Supreme Court. At its
root, the guarantee of a republican form of government means that the people
are the ultimate masters of their fate. They are the ultimate decision-makers as
to the form of government under which they will live, through the constitutions
they choose to adopt. A state court can no more "authorize" the state legislature to ignore the clear commands of a valid constitutional provision than the
legislature can choose to do so on its own. Either action displaces the rule of
the people with the rule of their agents, and replaces a republican form of government with a tyrannical one.